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Judgment in Wheelabrator DCO Challenge

Michael Humphries QC
Mark Westmoreland Smith
Ned Westaway

The High Court (Dove J) has handed down judgment in EFW Group Limited v SSBEIS [2021] EWHC 2697 (Admin) – see here.  The challenge was to the decision of the Secretary of State to make the Wheelabrator Kemsley K3 Generating Station Order 2021, granting consent for the extension to an energy from waste (EfW) project, K3, but withholding consent for a new EfW project, Wheelebrator Kemsley North (WKN) on neighbouring land that formed part of the same application.  The K3 project met the threshold of being a nationally significant infrastructure project (NSIP) under the Planning Act 2008 (the 2008 Act) and was covered by the applicable national policy statements EN-1 and EN-3.  The WKN project did not, but the Secretary of State had issued a direction under s.35 of the 2008 Act that WKN be treated as development for which development consent (under the Act) is required.

The issue as to the lawfulness of the decision arose principally from the different statutory provisions for determining the application relied upon by the Examining Authority (ExA) in its recommendation report and the Secretary of State in his decision letter.  

The ExA’s recommendation had considered K3 under s.104 of the 2008 Act – that applies to applications where a national policy statement has effect – but had considered WKN under s.105 – that applies where no national policy statement has effect.

The Secretary of State disagreed, finding that s.104 should apply to both K3 and WKN on the basis that the two provisions are mutually exclusive.

The claimant argued that the Secretary of State was correct as to the statutory basis for determining the application, but that the decision was unlawful in that it relied upon conclusions of the ExA that had not had sufficient regard to NPS policy, and in particular in refusing development consent for WKN:

-    Failed to accord the statutory primacy required to NPSs EN-1 and EN-3;
-    Failed to consider compliance of the project with the NPSs “as a whole”;
-    Failed to give adequate reasons; and/or
-    Acted in a procedurally unfair manner by failing to consult the parties on the different statutory basis on which he proposed to determine the application.

In defending the claim, the Secretary of State accepted that he had erred in treating the application under s.104 alone, but argued that error would not make a difference to the outcome for the claimant.

The case therefore primarily turned on the preliminary issue of whether the ExA or the Secretary of State was right – i.e. whether s.104 alone applied to the application, or whether s.104 applied to K3 but s.105 to WKN.

Dove J held that the ExA was right.  In particular he concluded, having regard to the overarching approach of the legislation, “section 105(1) should be interpreted as applying to those discrete elements of an application which comprise proposals for development for which no NPS which has effect” (para.59).  He rejected the argument that the s.35 direction had the effect of bringing the project into the scope of EN-1 and EN-3 (paras.60-62).  While that conclusion meant that the Secretary of State clearly misdirected himself in determining the WKN project (para.63), he concluded that the decision would have been the same had the error not been made (para.77).

Michael Humphries QC and Mark Westmoreland Smith (instructed by Keystone Law) appeared for the claimant, EFW Group Ltd; Ned Westaway (instructed by the Government Legal Department) appeared for the defendant Secretary of State